While hearing petitions to criminalise marital rape, a bench of Delhi High Court justices Rajiv Shakdher and C Hari Shankar asserted that a married woman has as much right to refuse consent as an unmarried woman.
Justice Shakdher questioned, “Why is it different for an unmarried woman? How does it affect an unmarried woman’s dignity, but not a married woman’s dignity? Whether she is married or not, she has a right to say ‘no’. Have 50 other countries (where marital rape is a criminal offence) got it wrong?”
The bench explained that excluding married women in the rape law (section 375 of the Indian Penal Code) prevents marital rape from being identified as an offence. The same then has to be tested using Article 14 (right to equality) and Article 21 of the Constitution.
The exception clause in section 375 claims that sexual intercourse by a man with his wife is not rape if she is above 15 years of age. “A woman remains a woman. You can show us the section, but jurisdiction after jurisdictions, it has been held that merely because you are married, it is not good enough to say that it is not an offence,” the bench pointed out, questioning the submissions of the Delhi government counsel Nandita Rao.
Rao had made an argument that a married woman has the remedies of filing an FIR for domestic violence, grievous hurt or getting divorced on the grounds of cruelty, and thus, she claimed that there would be no violation of her rights under Article 21 of the Constitution. However, justice Shakdher observed, “I find it difficult to appreciate when you are saying that there are other remedies and hence, there is no violation of Article 21 (right to life and liberty). The question is whether it is an offence or not, and whether this offence is tenable under our Constitution.”
The bench was hearing a cluster of PILs by NGOs RIT Foundation, All India Democratic Women’s Association, and two individuals, to remove the exception to Section 375 that decriminalises marital rape.